There is no basis to impose the shares of this case as deemed donation of title trust.

The imposition of tax on the constructive gift of title trust is unreasonable because there is no ground to acknowledge that the instant shares were held in title trust.

Article 2 of the Inheritance Tax and Gift Tax Act

2014Guhap16927 Revocation of Disposition of Imposition of Gift Tax

United StatesA

The head of Yangcheon Tax Office

July 16, 2015

August 27, 2015

1. The Defendant’s disposition of imposition of KRW 00,00,000 (including additional tax of KRW 0,000,000) on the Plaintiff on September 2, 2013 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. BB enterprise (hereinafter “B enterprise”) was established on December 10, 1993 and its principal business purpose is the aesthetic and waterproof construction business, and the total number of its issued stocks was 00,000 shares (0 won per share) at the time of its establishment, but was changed to 00,000 shares on April 20, 2005 through capital increase for new shares.

B. The statement of the change of stocks, etc. submitted by BB at the time of filing a corporate tax return at the time of the business year 2010 (hereinafter “the statement of the change of stocks, etc.”) is written as follows: (a) the total amount of BB’s stocks during the pertinent business year is 00,000 shares (hereinafter “instant shares”) transferred from GFF, Kim GG, Kim J, Kim J, Kim J, KimJ, KimK, LL, and HanM (hereinafter “new holders of the instant shares”) to the Plaintiff during the pertinent business year (hereinafter “instant shares”) (hereinafter “the instant shares”).

C. From May 6, 2013 to June 19, 2013, the head of Samsung Tax Office confirmed whether the new holders paid the transfer price to the previous holders with respect to the transfer of the shares listed in the statement of stock fluctuation (hereinafter “tax investigation of this case”). The reasons for the change of shareholders listed in the above statement are not transfer but transfer. The reasons for the change of shareholders are explained as follows: ① I want to allocate the shares to the employees in the form of shares for the development of the company due to boosting the morale of employees; ② I confirmed that the new holders were 00,000 shares and affixed the certificates of 10,000 shares to the employees of this case (No. 11-1); ② I confirmed that the certificates of 10,000 shares issued by 20,000 shares issued by 20,000 shares issued by 30,000 shares issued by 20,000 shares issued by 30,000 shares issued by 20,000 shares issued by 14.

D. On December 14, 2010, the head of Samsung Tax Office deemed that new holders, including the Plaintiff, donated each of the above shares from the previous holders, and notified each of the taxation data to the relevant head of the tax office having jurisdiction over the domicile of the new holders [mark] stated in the column of the head of the tax office (hereinafter “head of the competent tax office”).

E. The chief of the competent tax office including the Defendant calculated the value of donated property by evaluating the market price of 00,000 won at the time of December 14, 2010 based on the supplementary assessment method prescribed by the Inheritance Tax and Gift Tax Act, based on the shares of BB enterprises, and then imposed a gift tax on the new holders (hereinafter collectively referred to as "the imposition of the first gift tax") as stated in the notice date and the tax column, and among them, the imposition of the gift tax of 00,000,000 won (including the additional tax return of 0,000,000,0000,000 won, and the penalty tax of 0,000,000 won, which was imposed on the Plaintiff on September 11, 2013).

F. The new holders, including the Plaintiff, filed a request with the Tax Tribunal for a trial on the grounds of their dissatisfactions, and the “Korea-E-owned shares of KRW 00,000,000,000 from DaD in 2006, respectively, purchased each of the E-owned shares of KRW 00,000,000 from E and owned it in fact without completing the transfer of ownership from DoD.” The new holders, including the Plaintiff, argued that the former holders submitted a detailed statement of changes in stocks, etc. as if the shares of this case were transferred to the new holders from the previous holders.

G. On April 28, 2014, the Tax Tribunal rendered a decision that “The tax base and tax amount should be corrected according to the result of re-examination as to whether the MF acquired the stocks of this case with compensation from ED, etc., and the remaining claims are dismissed.”

H. Accordingly, the head of Samsung Tax Office re-examineed the shares from June 9, 2014 to July 4, 2014, and deemed that the transfer of 0,000 shares out of the shares of this case to Korea EE does not constitute a transfer at a low price among the related parties, but rather constitutes a transfer at a low price among the shares of this case. The remainder of 00,000 shares (0,000 shares - 0,000 shares) out of the shares of this case was entirely premised on the imposition of gift tax, and notified the head of the competent tax office of the assessment data by deeming that the previous holders were donated to the new holders, as in the initial imposition of gift tax

I. On July 17, 2014, the chief of the competent district tax office notified the new holders of the results of re-audit that the initial imposition of gift tax (excluding the part on which the gift tax was based on the above 0,000 main gift) was justifiable (the head of the competent tax office changed the part on which the above 0,000 main gift was disposed of from the initial imposition of gift tax, into the grounds for disposal, and then reduced or corrected the transfer at a low price, and the KoreaM did not object to the said reduction or correction

(j) The new holders including the Plaintiff filed a request for an inquiry with the Tax Tribunal on December 19, 2014, respectively, around the date of notification of the results of the reexamination.

(k) On September 24, 2014, the Plaintiff filed the instant lawsuit, and the remainder of the new holders of the case also filed a lawsuit seeking revocation of the imposition of gift tax (the pertinent court and case number are the same as the corresponding column) and is pending in the lawsuit (the pertinent court and case number are the same as the corresponding column).

[Ground for Recognition: Facts without dispute, Gap evidence 1, 2, 5 through 11, Eul evidence 1 through 3, the purport of whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

In around 2006, HanM purchased the instant shares, etc. from the previous holders, such as purchase of the shares of BB enterprise from E in KRW 000,000,000, and held the instant shares in the name of the previous holders without completing the transfer of ownership after payment of the purchase price. At the time of reporting the corporate tax for 2010, HanM entered the instant shares as if the instant shares were transferred to the new holders from the previous holders during the instant business year without obtaining the consent of the new holders, including the Plaintiff at the time of reporting the transfer of ownership. At the time of conducting the instant tax investigation, the instant shares were falsely prepared and submitted as if the previous holders and the new holders were to have donated on December 14, 2010. In other words, the actual owners of the instant shares are not Korea, but Korea, and the Plaintiff did not have made the instant shares donated from DoD.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Generally, since the tax authority bears the burden of proving the facts of taxation requirements in a lawsuit seeking revocation of a tax imposition disposition, the tax authority should directly prove the facts of taxation requirements in the specific litigation process or clarify the presumed facts of taxation requirements in light of the empirical rule (see Supreme Court Decision 97Nu13894, Jul. 10, 198). In light of the aforementioned legal principles, we examine whether the Plaintiff received the gift of the instant shares from ED on December 14, 2010.

2) The facts that the instant shares were indicated in the statement on the change of shares in this case that the instant shares were transferred to the Plaintiff from DoD during the 2010 business year are as seen earlier, and the Plaintiff did not pay any consideration for the instant shares to DoD. Moreover, there is no dispute between the parties that DoD’s name is affixed on the right side of the printed portion of DoD’s name, and the seal imprint is presumed to be based on DoD’s intent. Furthermore, even based on the testimony (Evidence No. 38) under Article 358 of the Civil Procedure Act, it is presumed that DoD’s act of affixing the seal imprint was presumed to be based on DoD’s intent, and even based on the testimony (Evidence No. 38) is presumed to have been established, DoD’s own seal imprint was requested to issue DoD for the reason that it is necessary for DoD’s shares, and in light of these circumstances, the above confirmation document was submitted directly to Do public officials at the time of the instant tax investigation, and thus, it cannot be reversed the Plaintiff’s’s’s’s testimony or assertion of Do.

3) However, in light of the following circumstances, the above facts alone are insufficient to recognize that the Plaintiff received the instant shares of December 14, 2010 from a D, and there is no other evidence to prove otherwise.

① All new holders, including the Plaintiff, are arguing that the instant shares were not donated from the existing holders, and are dissatisfied with the imposition of gift tax. However, considering the value of the instant shares and the amount imposed on the gift tax, if the new holders were to have actually received the instant shares from D, there seems to be no reason to deny the donation.

② There are sufficient circumstances to suspect whether the new holders, including the Plaintiff, are the actual holders of the instant shares. In other words, the said new holders were unaware of the details of the instant statement of stock fluctuation before the instant tax investigation was conducted.In addition, there is no circumstance to deem that the said new holders exercise voting rights or receive dividends.

③ According to the Defendant’s disposition, DoD’s status as the largest shareholder of BB would be lost by transferring BB’s shares to the KimG on December 14, 2010 and to the Plaintiff and KimJ each KRW 000,000,000,000,000,000,000,000,000 to the Plaintiff and KimJ, and to the Plaintiff and KimJ on December 14, 2010. However, DoD does not have any relationship with itself, and it is difficult to find any special motive or reason to donate the shares to new employees of the company, who are not working as the representative director, even if it was employed as the former representative director, and it is no longer possible to find out any special motive or reason to donate the shares of this case (and, as seen thereafter, Kim GG did not have any employees of BB at the time of December 14, 2010).

④ There are circumstances in conformity with the Plaintiff’s assertion that DaD voluntarily continued to operate BB, and NA transferred the instant shares to NA as it was reasonable for NA to start its own business. In other words, DoD was 66 years old as of the date of birth on the resident registration at 2006, and the sales and net income of BB were KRW 00 million in 2004,000 and KRW 0 million in 20000,000 in 205, respectively. At the time of 2006, NA was 100,000,000 won in 200,000 won in 30,000,000 won in 20,000 won in 30,000 capital in 20,000 capital in 20,000 capital in 20,000 capital in 20,000 capital in 20.

⑤ On September 30, 2010, HanmM directly paid the amount of gift tax imposed on new holders except for himself/herself with the amount of money borrowed from a corporate bank. However, as alleged by the Defendant, HanmM donated the instant shares to the new holders, and HanmM did not have any connection with the instant shares (excluding KRW 0,000, which is indicated as the transfer to HanmM from DoD), there is no special reason to pay the gift tax imposed on the new holders except for himself/herself. KoreamM is sufficient to deem that it is the actual owner who purchased the instant shares from DoD and the representative director of BB, who is his/her employee, is liable for and paid the gift tax imposed unfairly on the new holders.

(6) According to the results of the reinspection of the Samsung Tax Base, 0,000 of the shares in the name of Korea EE were not donated to Korea EM, but were transferred to Korea EM without permission, and the follow-up disposition was made on this premise. The contents of Korea EE certificates are inconsistent with those of Korea E certificates, and thus, they were submitted to the same other party in the same form at the same time. In addition, this D certificates state that the shares were donated to BB for the quantity of fraud by its employees. According to the specifications of changes in the shares of this case, the transfer of shares was made on December 14, 2010. According to the new specifications of this case, KimGGG was not a employee of Korea EM at the time of December 14, 2010 (see, e.g., evidence No. 14). Moreover, it is difficult to view that there were some new shares issued to the employees of Korea Stock Ownership Association in the name of Korea Stock Ownership Association, other than those of the employees of Korea Stock Ownership Association.

7. According to the fact that KM 1 and 3G 2 were paid to the above 3G 2G 50 billion won under the name of the above 3G 20,000 won for the above 3G 4G 20,000 won for the above 4G 2G 3G 20,000 won for the above 3G 4G 20,000 won for the above 4G 2G 3G 3G 20,000 won for the above 4G 3G 20,000 won for the above 4G 3G 20,000,000 won for the above 4G 3G 20,000,000 won for the above OG 1,000,000 won for the 3G 20,000,000 won for the above OG 3G 20,000,000 won.

4) Therefore, the instant disposition ought to be deemed an unlawful disposition that fails to meet the taxation requirements.

3. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per Disposition.